FAQ: Determining Fault in a Personal Injury

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What Is "Negligence" in a Personal Injury Claim?

Many personal injury claims are based on the legal theory of negligence. Negligence basically describes careless behavior that caused your injury or accident. For example, if a person failed to stop at a stop sign and hit you while you were crossing at a crosswalk, that person was probably acting negligently.

In order to prove negligence, you would need to prove some basic elements:

Negligence is an “unintentional tort”. This means that the injured party is allowed to recover damages even if the defendant didn’t act intentionally to cause an injury. That’s important to know, since many personal injuries are accidents, where neither party intended to cause an injury. 

How do I Determine Fault in a Personal Injury Lawsuit?

One of the difficulties in personal injuries is tracing who is liable for your injuries. In a negligence suit, this goes to the element of “causation”. That is, you need to be aware of who it was that actually caused your injury. This can be done through the use eyewitness testimony, medical documents, and other forms of proof.

With other types of personal injury lawsuits, there may be many parties involved. For example, in a claim for medical malpractice, you may have received treatment or advice from several parties, including: physicians, nurses, surgeons, etc. For injuries resulting from defective products, the product may have changed hands several times before actually reaching you.

One thing you can do is to make a written account of situation soon after your injury if that is possible. You will want to include all the names of the parties involved, as well as times, dates, and contact information. These can be useful when proving fault in your personal injury case.

If I Was Injured, Can I Receive a Damages Award Even if I was Partly Responsible?

Yes- although in most cases, your damages award will be partly reduced if you contributed in some way to your own injury. For example, if both you and another driver ran stop signs, the court will consider this when calculating your damages award. 

On the other hand, some jurisdictions will not allow a plaintiff to recover if they knowingly contributed to their own injury, or if they assumed a risk leading to their injury. This of course will depend on the type of injury and the laws of each individual area.  You may wish to consult with a personal injury to discuss your own liability. 

Can I Still Be Compensated Even If I Had Physical Condition That Made my Injuries Worse?

You generally can, but again your damages award may be lessened or prohibited depending on your pre-existing injury. The defendant may attempt to argue that you weren’t injured at all from the event, but simply had a physical condition before the accident.  If this is true, then there is no “causation” element, and the judge may limit your ability to recover losses. 

Or, if the accident simply aggravated an old injury of yours, the court may decide to lessen the amount of damages that you received. These types of calculations can often be complex, and the testimony of an expert medical witness may sometimes be needed.   

Do I Need a Lawyer for Determining Fault in my Personal Injury Case?

As you can see, there are many different factors that can arise when determining who is at fault in a personal injury case. It may be necessary for you to contact a personal injury lawyer in your area for help with your case. Your attorney can be on hand to answer your questions, give you advice, and represent you in court during trial. 

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Last Modified: 01-26-2015 12:01 PM PST

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